Borgcraft v Automotive Food Metals Engineering Printing &

[2000] FCA 1685

FEDERAL COURT OF AUSTRALIA

Borgcraft v Automotive Food Metals Engineering Printing &
Kindred Industries Union [2000] FCA 1685

BORGCRAFT PTY LTD V AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

V 660 OF 2000

NORTH J
1 SEPTEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 660 OF 2000

BETWEEN:	BORGCRAFT PTY LTD APPLICANT
AND:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	1 SEPTEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent is, until further order, whether by itself, its servants or agents, restrained from taking or threatening to take any industrial action in accordance with the notification of industrial action dated 22 August 2000 served upon the applicant by the respondent. 

2.The respondent is restrained until further order from, whether by itself, its servants or agents, organising or continuing or threatening to organise or being otherwise involved in physical obstruction or physical impediment to the free movement of goods or people to and from the business premises of the applicant at 31-33 Slough Road, Altona.

3.The matter is adjourned for further directions until 10.15am on Monday 2 October 2000.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 660 OF 2000

BETWEEN:	BORGCRAFT PTY LTD APPLICANT
AND:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT

JUDGE:	NORTH J
DATE:	1 SEPTEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Borgcraft Pty Ltd, seeks urgent interlocutory relief as set out in its application in par 1 in the following terms:

   “An injunction that until the hearing and determination of this Application or further order, the Respondent, whether by itself, its servants, agents or howsoever, be restrained from taking or threatening to take any industrial action in accordance with the notification of industrial action of 22 August 2000 served upon the Applicant by the Respondent.”

2. And in par 4 of its application, it seeks an injunction that:

   “until the hearing and determination of this application or further order the Respondent, whether by itself, its servants, agents or howsoever, be restrained from organising or continuing or threatening to organise or being otherwise involved in physical obstruction or a physical impediment to the free movement of goods or people to and from the business premises of the Applicant.” 

3. The notification of intended industrial action reads as follows:

   “NOTICE IS HEREBY GIVEN that officers and employees of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and members of the AMWU or persons eligible to belong to the AMWU employed by you intend to organise and engage in industrial action in accordance with the provisions applying to ‘protected action’ set out in the Workplace Relations Act 1996. 

   The particulars of this notice are as follows:

   On Monday 28 August at 7.00 am members of the AMWU intend

   to hold a meeting to discuss the current round of enterprise bargaining.  The meeting may cause a stoppage of work.

   If subsequent discussions between you and the AMWU and its

   members do not produce a mutually acceptable agreement within a short period of time we intend to escalate the industrial action through bans, limitations, stoppages and/or strike action by placing a picket line at entrance to premises and manned by Borgcraft employees.

   The extent to which the industrial action occurs depends on your response to demands made by the AMWU and its members.”

4. The notice was dated 22 August 2000. On Monday, 28 August the meeting referred to in the notice was held. As a result of the meeting there has been no work performed at the premises of the applicant since that time and a picket has been formed at the entrance of the applicant's premises by employees of the applicant and by at least one official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the respondent). The applicant contends that the respondent has taken industrial or other action contrary to s 170NC(1) of the Workplace Relations Act 1996 (Cth) (the Act) which provides that:

   “A person must not:

   (a)take or threaten to take any industrial action or other action …

   …

   with intent to coerce another person to agree, or not to agree, to:

   …

   (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; …”

5. The applicant further contends that this action of the respondent is not protected and consequently s 170NC(2) applies.  Section 170NC(2) provides that:

   “Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).”

   SERIOUS QUESTION TO BE TRIED

6. The applicant contends that there is a serious issue to be tried that the industrial action is not protected because it is engaged in by the respondent in concert with other persons who are not protected (see s 170MM(1) of the Act).  The basis for this argument is the contention that the employees of the applicant who are on strike and on the picket are not eligible to be members of the respondent and hence those employees are not within the definition of protected person in s 170MM(3)(b). 

7. The eligibility rule of the respondent relied upon by the applicant is Rule 1G(a)(iii) and 1G(b) of the registered rules of the respondent.  These rules provide for eligibility for membership of the respondent to persons engaged in or in connection with:

   “(a)     The manufacture, preparation, processing or putting up of:

   …

   (iii)soups and other preparations of vegetables and/or food from animals.

   …

   (b)the preparation and preservation as food of fruit and vegetables, their juices and pulp, meat, fish, seafood …”

8. There has been some evidence given on affidavit as to the work performed by the employees of the applicant.  The question of coverage is hotly disputed between the respondent and the Australian Liquor, Hospitality and Miscellaneous Workers Union.

9. I am told that the question of union coverage is a matter presently under consideration by the Australian Industrial Relations Commission.  I should only say that, in my view, there is a serious issue to be tried that the employees of the applicant are not eligible to be members of the respondent.  This is not a final determination of that issue, but a provisional conclusion necessary for the limited purpose of determining this interim application and is necessarily based on a very brief and incomplete survey of a substantial body of evidence concerning the issue. 

10. Thus, there is a serious issue to be tried that the strike is not protected action. I am also satisfied that there is a serious issue to be tried that the intention of the respondent in its role in relation to the strike and picket is to coerce the applicant to make an agreement within the terms of s 170NC(1)(c).

    BALANCE OF CONVENIENCE

11. The question then arises whether the balance of convenience favours the grant of relief.  There are serious economic consequences to the applicant arising from the continuance of the strike and the picket.  Against this is put the damage to the bargaining position of the respondent and the employees of the applicant if the strike and the picket are restrained by order of the Court.

12. The respondent also argues - and it seems to a large degree inconsistently - that the grant of relief should be refused on the ground that it would be pointless because the same action could be taken under other provisions of the Act.  The consequence of that argument is that the rights under the Act to take industrial action are not denied by the grant of relief but merely postponed.  The respondent also put an argument that the applicant had waived or acquiesced in dealing with the respondent over a number of months and that it would be inequitable for the Court now to restrain the respondent on the ground that there was an argument that the respondent did not have constitutional coverage over the employees.

13. I have carefully considered these matters going to the balance of convenience.  As is usual in these cases, the determination of the balance of convenience calls for sensitive judgment.  In my view, in this case the inconvenience to the applicant in the continuance of action which is arguably unprotected outweighs the interests of the respondent in continuing the action in the present procedural circumstances.  In my view, the balance of convenience favours the grant of relief as claimed in paragraph 1 of the application.

14. There was evidence that the picket has obstructed entry to and exit from the applicant's premises.  It is appropriate that such conduct be restrained.  An order following substantially the terms of paragraph 4 is therefore appropriate.  In my view, orders in these terms are sufficient to answer the requirements of the applicant.  I do not propose to make the orders claimed in paragraphs 2 and 3 of the application for relief. 

15. In making the orders in the circumstances of this case, I think it important to draw attention to the narrowness of the scope of this decision.  It has been recognised many times that the regime which the Act implements permits industrial action to be taken lawfully in circumstances defined by the Act.  It is arguable that those circumstances do not exist presently.

16. However, that does not prevent the employees seeking to take precisely the same action by utilising different sections of the Act.  With that consideration in mind, it is important that the parties focus on the underlying industrial issues so that the applicant can continue to produce pastizzis for the enjoyment of consumers in Victoria, and the employees of the applicant can continue to earn wages in doing so.  Those considerations should, it seems to me, militate against engaging in protracted technical legal action.

17. However, in the end, whether to resort to the Court is a matter of choice for the parties to the litigation.  The Court is bound to decide the technical legal issues and it has so done. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             24 November 2000

Counsel for the Applicant:	Mr McDonald
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondent:	Mr Gray
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	1 September 2000
Date of Judgment:	1 September 2000